Deaf father ‘unfairly alienated from his son’

Family Law|January 24th 2017

A disabled Polish father was unfairly prevented from forming a full relationship with his son, the European Court of Human Rights has ruled.

In Kacper Nowakowski v Poland, the father in question, born in 1976, was deaf and mute. He used sign language to communicate and lived inthe north-eastern town of Białystok.

In 2005 he married a woman referred to as ‘AN’, who had a less severe hearing impairment. She wore a hearing implant and used a mixture of speech and sign language.

In a sign that their auditory issues were most likely genetic, the couple’s son, ‘SN’, was also born with a hearing impairment.

The couple separated in 2007 and AN filed for divorce shortly afterwards. During the divorce proceedings, the local family court ruled that the man could see his son every Tuesday and Thursday for two hours and for three hours on Sundays. Visits took place at the mother’s house.

But the father didn’t stick to this agreed schedule and it was this changed later that same year when the family was assessed by local “experts”.

In a European Court of Human Rights ruling, it was explained that:

“In their opinion, dated 15 October 2007, the experts underlined that the emotional ties between the mother and the child were strong and natural. However, the ties between the applicant and his son were weak and superficial.”

They concluded that the visits should instead take place four times a month for two hours on each occasion – on Fridays and the final Sunday of each month.

Later the father applied to weekend visits away from the mother’s home. He admitted that he had not seen his son for a year at that point but claimed this was due to health problems. His application was refused, due to “the limited level of communication between him and the child, the child’s age and history, and the strength of the child’s ties with the mother and maternal grandparents.”

An appeal was also dismissed. Later, AN applied for a reduction in the father’s parental authority, limiting them to educational issues. She claimed that he had hindered the issue of an identity document for the boy. The courts granted her request and dismissed his subsequent appeal.

At the point the father took his case to the European Court of Human Rights, claiming his rights under Article 8 of the European Convention on Human Rights had been breached. This article specifies respect for “private and family life”.

Justices accepted his claim, saying:

“…the Court finds that [the Polish authorities] have not taken all appropriate steps that could reasonably be demanded with a view to facilitating the applicant’s contact with his son.”

Communication difficulties between father and son had been seen as an obstacle to contact and this had resulted in discrimination against the father, who had an “incontestable right to contact with his son and that the communication issue should have been taken into account.”

Antagonism between the parents had also been seen as a reason to minimise visits, and the authorities had not taken proper steps to make contact possible in spite of the hostility.

The father was awarded €16,250 (£13,955) for ‘non-pecuniary’ damages (i.e damages which were not financial in nature), plus €698 (£599) in costs and expenses.

Read the full ruling here.

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